2004 Judicial Studies Board Lecture: Belfast

25 November 2004

Deference: A Tangled Story

By Lord Steyn*

In the rhetoric of democratic dialogue clamorous assertions by judges of

judicial independence no doubt have value. But such statements are surpassed

in importance by what, up and down the United Kingdom, judges in fact do in

fulfilling their constitutional duty of protecting citizens from abuse of power by

an all powerful executive that dominates the legislature. How effectively the

courts perform this task is affected by the extent to which they must be

complaisant to the views of the other branches of government when

considering the issues in cases before them. This subject is usually discussed

under the headings of deference or discretionary area of judgment. It is to be

contrasted with the margin of appreciation applicable to the relationship

between the European Court of Human Rights and national authorities. The

limits of deference observed in practice are of fundamental importance to the

proper functioning of our democracy. It is a controversial subject. Even in the

highest court in the land there are divergent views on the subject. The

differences of view should be a matter of public discussion. I hope to give

some focus to such a debate.

* A Lord of Appeal in Ordinary.

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In 1978 Lord Hailsham wrote a book called The Dilemma of

Democracy. He described the Westminster system as “an elective

dictatorship”. Those were his words. He said “we live under the authority of a

rule [of parliamentary supremacy] absolute in theory if tolerable in practice”.

He explained [at 126]:

“In our lifetime the use of its powers has continuously increased, and the checks and balances have been rendered increasingly ineffective by the concentration of their effective operation more and more in the House of Commons, in the government side of the House of Commons, in the Cabinet within the government side, and to some extent in the Prime Minister within the Cabinet. The sovereignty of Parliament, absolute in theory, has become more and more the sovereignty of the House of Commons, and like all absolute rulers, having more and more to do, and in consequence less and less time within which to do it, is becoming more and more the tool of its professional advisers, more and more intolerant of criticism, and less and less in control of the detail of what is done in its name.”

In 1979 Mrs Thatcher became Prime Minister and Lord Hailsham was

her Lord Chancellor for eight years. In 1979, 1983 and 1987 her successive

majorities were 43, 144 and 100. It does not appear that the system against

which Lord Hailsham had railed in 1978 had significantly improved. In

1997 New Labour came into power with a majority of 177 and was re-

elected in 2001 with a majority of 165. Lord Hailsham’s remarks in 1978

may be even more relevant to Westminster today.

The power of the government over the affairs of the nation and the lives

of individuals is enormous. The government may, by the use of its majority

in the House of Commons, if so minded, trample over ancient liberties

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(ranging from habeas corpus to foxhunting), dismantle parts of our social

democracy (reflected in the National Health Service and legal aid), and may

lawfully embark on a war contrary to the will of the people. All this is

elementary law. It is the backdrop against which a critical question arises:

what limit, if any, is there on the power exercised in our system by a

government with a secure majority at Westminster?

In constitutional theory the answer is tolerably clear. In a democracy

power is distributed among three coordinate branches of government: the

legislature, the executive and the judiciary. The relationship between

Parliament and the executive depends on political realities. Parliament is

supreme, but a government with a secure majority can be expected, despite

the reviewing powers of the House of Lords, in the long run to secure the

enactment of its programme of legislation. The relationship between

Parliament and the judiciary is straight forward. The primary law-making

function belongs to Parliament. Legislation is the primary source of law of

our time. Thus the vast bulk of criminal law is statutory. Subject to what I

will say about the Human Rights Act 1998, the function of the courts is

simply to construe and apply statutes. A judge’s task is to interpret not to

interpolate. There is a Rubicon which judges may not cross: principles of

institutional integrity forbid it. That is, of course, not a prescription for

literal interpretation. The working assumption is that Parliament expects its

statutes to be interpreted in a meaningful and purposive way to give effect to

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the basic objectives of the legislation. The context in which our legislature

functions is all important. Parliament legislates for a modern liberal

European democracy. It would expect, unless it clearly provides otherwise,

(a) that legislation will fit into the current norms of our legal system i.e. be

given an always speaking interpretation, and (b) that legislation will not

destroy fundamental rights. These presumptions have a constitutional

significance.

In regard to the role of the courts there is an important distinction. In

construing statutes the courts have no law-making role. On the other hand,

in the exposition of the common law, the courts have a creative role. If this

statement causes surprise in some quarters, one need only point to the fact

that the whole of the common law is judge made. On the other hand, it is

necessary for courts, when developing the common law, to proceed with

caution lest they undermine confidence in their judgments. The courts may

not make law contrary to the will of Parliament. The courts are therefore

constrained when Parliament has spoken. But in general the courts are not

so constrained when Parliament has not spoken since Parliament’s silence

and inaction is usually ambiguous. The courts do not have the last word.

Parliament may reverse any decision unacceptable to it. There is therefore

nothing anti-democratic about the role of the courts. The so-called counter

majoritarian difficulty is a little unreal.

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The proper constitutional relationship between the executive and the

courts has often been stated. The courts will respect all acts of the executive

within its lawful province, and the executive will respect all decisions of the

court as to what its lawful province is.1 When the executive strays beyond

its lawful province the courts must on behalf of the people call it to account.

It is natural and healthy that tensions between the branches of

government will sometimes arise. Citizens have reason to become worried if

such tensions do not arise. For example, a cosy and non transparent co-

operation between the executive and the judiciary does not enhance

democratic values. As Lord Hope of Craighead recently put it: “Central to

the rule of law in a modern democratic society is the principle that the

judiciary must be, and must be seen to be, independent of the executive”.2

The judiciary is the weakest of the three departments of state. Yet our

unwritten constitution places on the judiciary, particularly in disputes

between the state and individuals, an important role. The democratic

principle involves two strands. First, ours is a representative democracy. In

general government may and must be carried on in accordance with the

principle of majority rule, as reflected in the results of elections. Whether a

government should, as a matter of prudent and wise decision-making, resort

to the full amplitude of its powers, on truly divisive issues, is an altogether

different political matter but it is beyond the domain of the courts. The

1 M v Home Office [1992] 1 QB 270, per Nolan LJ, at 314H-315A.2 Millar v Dickson [2002] 1 WLR 1615, 1633, para 41.

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second strand is that in any democracy worthy of the name the fundamental

rights of individuals, citizens and foreigners alike, must under law be

protected effectively. How is this to be accomplished? Clearly the

legislature and the executive cannot be asked to perform it. The only

solution is to place the duty of making such decisions on an independent,

impartial and neutral judiciary. Such a judiciary will inevitably from time to

time give judgments against the wishes of the executive. That is only to be

expected. It is an inevitable consequence of principled decisions by judges.

Although the vast majority of judicial review decisions go in favour of the

executive, ministers sometimes find it hard to stomach adverse decisions. So

be it. Nobody is above the law.

The role of the courts in protecting fundamental rights was, of course,

part of our unwritten constitution before the Human Rights Act 1998 was

enacted. Now it is reinforced by the 1998 Act which brought rights under

the European Convention on Human Rights home, that is, to be enforced in

the United Kingdom rather than in Strasbourg. This is not an ordinary

statute. Like the Representation of the People Act 1983 it could be repealed

by Parliament but that is surely fantasy. It is a constitutional measure

ranking in importance with other milestones in the evolution of our country

towards becoming a fully fledged constitutional state. Within the four

corners of the 1998 Act, read with the Convention scheduled to it, the

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jurisdiction of the courts to hear disputes on alleged breaches of Convention

rights is comprehensive.

The existence of jurisdiction does not mean that it ought always to be

exercised. One of the reasons for a court refraining from exercising

jurisdiction, may be a reasonable view that a particular matter is best left to

the judgment of the legislature (eg. whether marriage between homosexuals

should be permitted) or that the executive is better placed than the judiciary

to make a judgment on a critical factual question (e.g. the evaluation of

intelligence about a national security issue.) Acting within its jurisdiction, a

court may in certain circumstances consider it right to defer to the views of

the other branches of government. That itself is, of course, a judicial

decision. While in the British constitution the disentangling of the

legislature and the executive is not always easy, it may be right to say that

the courts will more readily defer to Parliament than to the executive. But

the decision to defer is by law a matter entrusted to the discretion of the

courts.

The principle underlying cases where the court decides to refrain from

arriving at its own view on the merits of an issue is usually discussed under the

general rubric of deference. It refers to the idea of a court, exceptionally, out of

respect for other branches of government and in recognition of their democratic

decision-making role, declining to make its own independent judgment on a

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particular issue. This term is to be found in numerous decisions of the House

of Lords and the Court of Appeal.3 It is well known in the jurisprudence of the

highest courts of Australia, Canada, New Zealand, South Africa and the United

States of America. It has the advantage of being well understood in Western

democracies. In the recent ProLife Alliance case Lord Hoffmann suggested

that this terminology is unfortunate.4 He said (para 75):

“although the word “deference” is now very popular in describing the relationship between the judicial and the other branches of government, I do not think that its overtones of servility, or perhaps gracious concession, are appropriate . . .”

On this point of terminology, Lord Hoffmann has the support of the influential

textbook written by Lord Lester of Herne Hill QC and Mr David Pannick QC.

Referring in a footnote to Lord Hoffmann’s judgment in ProLife Alliance they

express, in the context of cases governed by the 1998 Act, a preference for the

expression of discretionary area of judgment of a national court.5 I am

reluctant to enter into an argument about labels. It ought not to fetter our

substantive thinking. But my inclination is not to abandon altogether the

phrase deference, which is sanctioned by wide usage in the United Kingdom

and abroad, and has the virtue of concision. At the same time I recognise that

the phrase a discretionary area of judgment is a useful one.

3 See, for example R v DPP, ex p Kebilene [2000] 2 AC 326, at 381, per Lord Hope of Craighead; R v Lichniak [2003] 1 AC 903, at 912A, per Lord Bingham of Cornhill.4 Regina (ProLife Alliance) v British Broadcasting Corp. [2004] 1 AC 185.5 Human Rights Law and Practice, 2nd ed., para 3.19 note 3.

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It is, however, the substance of the law governing the respect owed by

courts to the views of the legislature and the executive which matters. Having

expressed agreement with Lord Hoffmann’s criticism of the use of the term

“deference” Lester and Pannick state, in the framework of the ECHR, what the

underlying principle is. They say:6

“This doctrine concerns not the legal limits to jurisdiction but the wise exercise of judicial discretion having regard to the limits of the courts’ institutional capacity and the constitutional principle of separation of powers. It is essential that the courts do not abdicate their responsibilities by developing self-denying limits on their powers.”

This observation encapsulates much of what deference is about.

First, separation of powers requires judges to concentrate on disputes

which properly come before them and to avoid straying into legislative and

executive business. Secondly, the court must sometimes consider in the

context of the particular case before it, where an issue of deference arguably

arises, whether the context and circumstances of the case require the court to

defer on a specific issue to the view of the legislature or the executive. It is not

a matter of law: it is a matter of discretion to be exercised in the objective

circumstances of the particular case. Thirdly, what courts may not do is to

abdicate any part of their jurisdiction. That is so under the 1998 Act where

Parliament itself has entrusted a constitutional role to the court. The same is

true outside the scope of the 1998 Act. Courts may not give up their

6 Ibid.

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jurisdiction directly. They may also not do so indirectly through relinquishing

jurisdiction by any form of self denying ordinance in respect of particular

classes of cases, be it under the cloak of some newly discovered constitutional

principle, or the doctrine of separation of powers.

What a court may properly do, in the context of a specific issue in a

particular case, is to decline as a matter of discretion to rule on it on the ground

that another branch of government is institutionally better qualified to decide

the matter, eg the allocation of scarce resources for what may be important but

experimental surgery. In a classic text Professor Bickel called this practice the

passive virtue.7 He made clear that such a decision is not one of law.8

Dealing with the position under the Canadian Charter of Freedoms

(1992), the bill of rights of the Canadian people, Madam Justice McLachlin

(now the Chief Justice of the Supreme Court of Canada) summarised the

principled position as follows:9

“Care must be taken not to extend the notion of deference too far … Parliament has its role: to choose the appropriate response to social problems within the limiting framework of the Constitution. But the courts also have a role: to determine, objectively and impartially, whether Parliament’s choice falls within the limiting framework of the Constitution. The courts are no more permitted to abdicate their responsibility than is Parliament. To carry judicial deference to the point of accepting Parliament’s view simply on the basis that the problem is so

7 The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 2nd ed., 127. 8 Op. cit., 132.9 R J R - MacDonald v Canada Attorney-General (1995) 3 SCR 199, paras 133-137.

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serious and the solution difficult, would be to diminish the role of the courts in the constitutional process and to weaken the structure of rights upon which our constitution and nation is founded.”

Although there are differences between the 1998 Act and the Canadian Charter,

the two bills of right closely resemble each other. Both are generally expressed

in relative rather than absolute terms and both permit the elected government to

limit or override rights. Charter jurisprudence is of great importance for us in

the United Kingdom. In my view the statement of Madam Justice McLachlin

accurately reflects the role entrusted by Parliament to our courts under the

Human Rights Act and the proper approach to deference by the judiciary to

other branches of government.

Parliament itself laid upon our courts the duty to decide whether

Convention rights have been breached. In Roth Simon Brown LJ (now Lord

Brown of Eaton-under-Heywood) said “The court’s role under the Human

Rights Act is as the guardian of human rights. It cannot abdicate this

responsibility.”10 In point of principle there cannot be any no-go areas under

the ECHR and for the rule of law. On the other hand, the courts may recognise

that in a particular case and in respect of a particular dispute, Parliament or the

executive may be better placed to decide certain questions. The courts ought

not to take such decisions on a priori grounds without scrutiny of the

challenged decision since nobody can know in advance whether it has been

10 International Transport Roth GmbH v Secretary of State for the Home Department [2003] QB 728 at 746, para 27.

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infected by manifest illegality. This is a balanced approach well suited to the

needs of our mature democracy.

There are powerful policy reasons why courts should never abdicate

their democratic and constitutional responsibilities. The truth is that even

democratic governments sometimes flagrantly abuse their powers and need to

face open and effective justice. If this point needs proof, it is vividly illustrated

by events following the armed conflicts in Afghanistan and Iraq. The detention

of prisoners at Guantanamo Bay has one single object: the United States

administration wanted to place them beyond the protection of the rule of law.

They created a hellhole of utter lawlessness where the prisoners are at the

mercy of the American army, of which the President is, in law and in fact, the

Commander in Chief. It has already encouraged the erosion of the rule of law

and human rights in many parts of the world. It will haunt, in the Arab world,

the claims made in the name of democracy for a very long time.11 Then there is

the degrading treatment inflicted on prisoners at the Abu Ghraib prison outside

Baghdad.12 But for the large number of photographs taken and circulated by

American officials their brutal and sordid behaviour would have been deniable.

It marks the triumph of brutality in an age of human rights. In a recently

published book Seymour Hersh, the distinguished journalist and Pulitzer Prize

winner, who exposed the My Lai massacre during the Vietnam war, has

examined the chain of command which led to the Abu Ghraib events. His

11 I discussed this topic in Guantanamo Bay: The Legal Black Hole, 53 ICLQ, 2004, 1-15.12 The Lancet, 21 August 2004.

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analysis showed that the brutal events were not isolated incidents. Relying on a

mass of evidence he argues that the responsibility lay at the highest levels.13

How are these images and reports received in the moderate Arab world which

believes in the universal human values of dignity and respect? It is not difficult

to guess. What is to be done? At the very least wholly independent enquiries

are necessary to follow the evidence about Guantanamo Bay and Abu Ghraib

where it leads. The cleansing effect of letting in daylight may begin to repair

some of the damage done. Even if these gross violations of human rights law

must be attributed solely to American officials, their relevance to the point I am

making must be obvious. There are reports that British officers questioned

detainees at Guantanamo Bay.14 If our country associated itself with what

happened at Guantanamo Bay, there are serious unexplored and unanswered

questions. There are also reports that two British officers liaised with

American forces at Abu Ghraib at relevant times. The latter allegations are

strongly denied by British authorities.15 One can be fairly confident that history

will not be silenced. The facts will surely emerge. For those who advocate the

creation of legal zones of executive immunity, experience of the global war on

terrorism ought to give pause for thought.

At the risk of over simplification I would summarise the position as

follows. The rule of law requires that courts do not surrender their

responsibilities. So far as the courts desist from making decisions in a 13 Chain of Command, 2004.14 The Guardian, 4 August 2004.15 The Guardian, 16 September 2004 but compare the Ministry of Defence’s letter of denial published by The Guardian on 18 September 2004.

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particular case it should not be on grounds of separation of powers, or other

constitutional principle. Deference may lead courts not to make their own

judgments on an issue. The degree of deference which the courts should show

will, of course, depend on and vary with the context.16 The true justification for

courts exceptionally declining to decide an issue, which is within its

jurisdiction, is the relative institutional competence or capacity of the branches

of government.

As I mentioned at the beginning of this lecture, even in the Law Lords

Corridor, there are opposing philosophies on the subject of deference. The

matter is of such importance that it deserves a public airing. Lord Hoffmann

and I have different views on the subject and the remainder of my lecture

examines important points which he has raised in lectures and judgments.

Lord Hoffmann has found a different answer in the doctrine of

separation of powers and constitutional principle.17 In a lecture given in 2001,

Lord Hoffmann said that the subject of separation of powers “has formed

something of a theme in [his] judicial work”. I will concentrate on the

observations of Lord Hoffmann in two important decisions. The first is the

Secretary of State for the Home Department v Rehman (2001).18 The Home

Secretary had ordered the deportation of a Pakistani national under section 3(5)

16 Compare Smith and Grady v United Kingdom (1999) 29 EHRR 493.17 Human Rights and the House of Lords (1999) 62 MLR 159; Bentham and Human Rights, (2001) 54 CLP61; Separation of Powers (2002) JR 137; The Alconbury case: R v (Alconbury Developments Ltd.) v Environment Secretary [2003] 2 AC 295; and ProLife Alliance and Rehman cases cited in footnotes 4 and 18.18 [2003] 1 AC 153.

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(b) of the Immigration Act 1971 on the ground that it would be conducive to

the public good. Reversing a decision of the Special Immigration Appeals

Commission, the Court of Appeal held inter alia that the executive is the best

judge of the need for international co-operation to combat terrorism and to

develop counter-terrorist strategies. On this issue the Court of Appeal deferred

to the executive. The House unanimously upheld the decision of the Court of

Appeal. The House also deferred to the view of the executive on the principal

point in the case. There has been criticism of the reasoning in Rehman and

even a suggestion that the House of Lords may have to revisit the subject.19 I

do not propose to discuss the topic generally. But the judgment of Lord

Hoffmann, concurred in by Lord Clyde, is of particular interest. Lord

Hoffmann observed (para 50):

“Under the constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive.”

Lord Hoffmann explained this approach as follows (para 62):

“. . . It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences

19 Mark Elliott “Constitutional Developments” (2003) International Journal of Constitutional Law 1; David Dyzenhaus, Intimations of Legality Amid the Clash of Arms, I.J.C.L. 1; Trevor Allan, Common Law Reason and the Limits of Judicial Deference; Essay in The Unity of Public Law, ed David Dyzenhaus, 289; Nicholas Blake, Judicial Review of Expulsion Decisions: Reflections on UK Experience, essay in The Unity of Public Law, 225. Compare the decision of the Canadian Supreme Court in Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3.

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of such decisions, they must be made by persons whom the people have elected and whom they can remove.”

It is, however, necessary to note three qualifications about the reviewability of

such a decision mentioned by Lord Hoffmann (para 54):

“First, the factual basis for the executive’s opinion that deportation would be in the interests of national security must be established by evidence. . . . Secondly, the Commission may reject the Home Secretary’s opinion on the ground that it was “one which no reasonable minister advising the Crown could in the circumstances reasonably have held”. Thirdly, an appeal to the Commission may turn upon issues which at no point lie within the exclusive province of the executive. A good example is the question, as to whether deporting someone would infringe his rights under article 3 of the Convention because there was a substantial risk that he would suffer torture or inhuman or degrading treatment.”

[Emphasis supplied]

The latter is, of course, a reference to an absolute guarantee under the

ECHR which admits of no derogation.

In Regina (ProLife Alliance) v British Broadcasting Corporation

(2003) Lord Hoffmann developed his views further.20 In that case

broadcasters refused on the grounds of taste and decency to broadcast a

party political election broadcast involving a video that contained

graphic footage of an actual abortion including images of foetuses. It

was said to contravene section 6(1)(a) of the Broadcasting Act 1990. By

20 [2004] 1 AC 185.

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a majority of four to one the House held that the Court of Appeal had

erred in concluding that the broadcaster had acted unlawfully. The

decision of the House on the merits of the dispute I leave to one side. It

is the judgment of Lord Hoffmann which is again for the present

purposes of particular interest. I have already referred to it in the

context of terminology but it is necessary to set out the passage as a

whole. It reads as follows (at 240C-F):

“75 My Lords, although the word “deference” is now very popular in describing the relationship between the judicial and the other branches of government, I do not think that its overtones of servility, or perhaps gracious concession, are appropriate to describe what is happening. In a society based upon the rule of law and the separation of powers, it is necessary to decide which branch of government has in any particular instance the decision-making power and what the legal limits of that power are. That is a question of law and must therefore be decided by the courts.

76 This means that the courts themselves often have to decide the limits of their own decision-making power. That is inevitable. But it does not mean that their allocation of decision-making power to the other branches of government is a matter of courtesy or deference. The principles upon which decision-making powers are allocated are principles of law. The courts are the independent branch of government and the legislature and executive are, directly and indirectly respectively, the elected branches of government. Independence makes the courts more suited to deciding some kinds of questions and being elected makes the legislature or executive more suited to deciding others The allocation of these decision-making responsibilities is based upon recognised principles. The principle that the independence of the courts is necessary for a proper decision of disputed legal rights or claims of violation of human rights is a legal principle. It is reflected in article 6 of the Convention. On the other hand, the principle that majority approval is necessary for a proper

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decision on policy or allocation of resources is also a legal principle. Likewise, when a court decides that a decision is within the proper competence of the legislature or executive, it is not showing deference. It is deciding the law.”

These observations of Lord Hoffmann were clearly carefully considered

and are important. I have enormous respect for the views of Lord

Hoffmann. But I disagree with him on this subject.

Let me now start with the 1998 Act. By our bill of rights,

Parliament has entrusted to the courts the duty to stand guard over the

irreducible and universal human rights contained in the ECHR. It is

therefore the duty of the courts to define the contours of our rights based

democracy. Let me illustrate the point by reference to the cluster of

Convention rights contained in article 8 (Right to respect for private

life), article 9 (Freedom of thought, conscience and religion), article 10

(Freedom of expression) and article 11 (Freedom of assembly and

association). The articles contain many concepts reflecting matters of

general and public interest upon which the legislative and executive

branches of government would have a view. Examples are “national

security” (under Arts 8, 10, 11), “public safety” (under Arts 8, 9, 10,

11), “the economic well-being of the country” (under Art 8), “public

order” (under Art 9), “the protection of health or morals” (under Arts 8,

9, 10, 11), or “the prevention of disorder or crime” (under Arts 8, 10,

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11). These are all qualified escape routes from the application of

Convention rights. In all these cases, however the structure of the

ECHR makes clear that an interference with the relevant Convention

right is only justifiable if it is in accordance with the law and necessary

in a democratic society, criteria upon which the view of the executive

cannot possibly be conclusive. Indeed it is the very ethos of the ECHR

that the courts will be the arbiters of these criteria.

In one sense all these concepts involve matters of policy under

Lord Hoffmann’s formulation in ProLife Alliance. But it cannot be right

to say that these are issues which constitutional principle withdraws

from decision by the courts. While a national court may have to accord

some appropriate deference to the executive (e.g. a national security

issue based on intelligence assessments) it must also address the

questions: Does the interference serve a legitimate objective? Is it

necessary in a democratic society? In Tinnelly & Sons Ltd v United

Kingdom21 in discrimination proceedings the European Court of Human

Rights had to consider public interest immunity certificates involving

national security considerations issued by the Secretary of State. The

court observed, at p 290, para 77:

“the conclusive nature of the section 42 [Fair Employment (Northern Ireland) Act 1976] certificates had the effect of preventing a judicial determination on the merits of the

21 (1998) 27 EHRR 249.

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applicants’ complaints that they were victims of unlawful discrimination. The court would observe that such a complaint can properly be submitted for an independent judicial determination even if national security considerations are present and constitute a highly material aspect of the case. The right guaranteed to an applicant under article 6(1) of the Convention to submit a dispute to a court or tribunal in order to have a determination on questions of both fact and law cannot be displaced by the ipse dixit of the executive.”

In Smith and Grady v United Kingdom22 the challenge to the Ministry of

Defence ban on homosexuals serving in the armed forces, the European

Court of Human Rights observed that the Wednesbury threshold:

“. . . was placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants’ rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the court’s analysis of complaints under Article 8 of the Convention.”

The challenge succeeded. Numerous other decisions of the ECtHR

show that issues of national security do not fall beyond the competence

of national courts. But self evidently national courts must give

substantial weight to the views of the executive on matters of national

security.23

22 (1999) 29 EHRR 493.23 Klass and Others v Federal Republic of Germany (1978) 2 EHRR 214; Leander v Sweden (1987) 9 EHRR 433; Zana v Turkey (1997) 27 EHRR 667; Brannigan and McBride v United Kingdom (1993) 17 EHRR 539; Redvenyi v Hungary (1999) 30 EHRR 519.

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So far I have examined the reasoning of Lord Hoffmann mainly

in the context of national security, public safety and related concepts. I

have done so first because the occasion for deference will perhaps most

frequently and credibly arise in this area. But Lord Hoffmann’s

reasoning strikes wider. He states that “the principle that majority

approval is necessary for a proper decision on policy or allocation of

resources is also a legal principle”. On this reasoning such decisions are

beyond the competence of the courts. Apart from Lord Hoffmann’s

observation I am not aware of any authority for this view. But that is

not decisive. Lord Justice Scrutton once observed that if there was no

authority for a certain proposition that it was time that the court created

one.24 On the other hand, one must bear in mind the caution expressed

by Dixon CJ that not everything that appears in the law reports is the

law.25

In formulating his legal principle Lord Hoffmann does not appear

to distinguish between statutory interpretation and common law

adjudication. But it is difficult to assimilate the two: the role of the

courts is somewhat different. There cannot be a single unifying

principle.

24 Ellerman Lines Limited v Read and Others [1928] 2 KB 144, at 152.25 White v The Queen (1962) 107 CLR 174, 175.

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The sweep of Lord Hoffmann’s legal principle is massive. Most

legislation is passed to advance a policy. And frequently it involves in

one way or other the allocation of resources. I am, of course, not saying

that policy issues are not relevant, and that costs must be ignored. These

factors will often be relevant in searching for the best interpretation.

What I am saying is that there cannot be a legal principle requiring the

court to desist from making a judgment on the issues in such cases. In

interpreting legislation the courts must simply, with the aid of all

relevant internal and external sources, try to find the contextual meaning

of a given text. There is in my view no justification for a court to adopt

an a priori view in favour of economic conservatism.26

In common law adjudication it is an everyday occurrence for

courts to consider, together with principled arguments, the balance sheet

of policy advantages and disadvantages. It would be a matter of public

disquiet if the courts did not do so. Of course, in striking the balance the

courts may arrive at a result unacceptable to Parliament. In such cases

Parliament can act with great speed to reverse the effect of a decision. It

has done so in the past. That is in the spirit of our constitution, and is

wholly in accord with the democratic ideal. But there is no need to

create a legal principle requiring the courts to abstain from ruling on

policy matters or allocation of resource issues. On the other hand, the 26 Martin Chamberlain, Democracy and Deference in Resource Allocation Cases: A Riposte to Lord Hoffmann, (2003) JR 12.

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objective circumstances will dictate whether there is a need for

deference to the view of other branches of government on the particular

issue.

It is obvious that the courts may only develop the law in the

spaces left by Parliament. What does this mean? The context is all

important. The only possible generalisation is this: when Parliament has

spoken on the matter, there is no scope for judicial innovation. On the

other hand, when Parliament has not spoken, the position is different.

Parliamentary inaction is usually explicable on many different grounds.

It is generally not a sure foundation for courts to refuse to decide cases

in accordance with their constitutional duties.

There is a valuable body of academic literature on this subject. A

recent analysis by Professor Jeffrey Jowell QC is particularly

persuasive.27 After setting out Lord Hoffmann’s views in some detail he

summarised his conclusion as follows (at 599):

In so far as the courts . . . concede competence to another branch of government, it seems to me that such a concession is not a matter of law, nor based upon any legal principle as Lord

27 Judicial Deference, Servility, Civility or Institutional Capacity? 2003 PL592. I have also found the analysis of Richard Clayton QC in Judicial Deference and Democratic dialogue”: the legitimacy of judicial intervention under the Human Rights Act 1998 [2004] PL 33 illuminating.

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Hoffmann contends. Lord Hoffmann is right that it is for the courts to decide the scope of rights, but there is no magic legal or other formula to identify the “discretionary area of judgment” available to the reviewed body. In deciding whether matters such as national security, or public interest, or morals should be permitted to prevail over a right, the courts must consider not only the rational exercise of discretion by the reviewed body but also the imperatives of a rights-based democracy. In the course of some of the steps in the process of this assessment the courts may properly acknowledge their own institutional limitations. In doing so, however, they should guard against a presumption that matters of public interest are outside their competence and be ever aware that they are now the ultimate arbiters (although not ultimate guarantors) of the necessary qualities of a democracy in which the popular will is no longer always expected to prevail.”

This passage encapsulates a balanced approach.28 I would respectfully

commend it.

Some may be puzzled by the fact that Lord Hoffmann and I could

agree on the result of Rehman and yet fundamentally disagree on the

applicable principles. Where is the parting of the ways located? A clue

may be an observation of Lord Hoffmann in his “Separation of Powers”

lecture of 2002. He said29

“The courts should not, under cover of interpretation of the human rights of the individual, make decisions about what the general public interest requires. There is no individual right to have the law changed to accord with the court’s perception of the general public interest. Once this happens, we have government by judges rather than government by the people.”

28 Professor Jowell’s analysis is set out in more detail in Judicial Deference and Human Rights: A Question of Competence in P Craig and R Rawlings, eds, Laws and Administration in Europe (Oxford University Press, 2003).29 [2002] JR 137.

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I would respectfully disagree with this statement as a correct view of the

role of the courts under our bill of rights. But I return to the reasoning

of Lord Hoffmann in Rehman. His first reason for deferring was that the

executive has special expertise in these matters. In the context of

national security issues that seems to me uncontroversial. Lord

Hoffmann’s second reason was that such decisions must be made by

persons whom the public have elected, and whom they can remove. If

valid, this reason is self sufficient and controlling. If this reasoning

were to be extended to Convention rights, courts would be required

automatically to defer, on constitutional grounds, on any occasion on

which a qualified Convention right was claimed to be defeated by a

particular public interest.30 It would diminish the role of courts under

the ECHR. If such a view were generally accepted, it would seriously

emasculate the ECHR, the 1998 Act and our bill of rights.

It may be that the subject of my lecture is today more important

than it has ever been. Judge Learned Hand once said, “A society whose

judges have taught it to expect complaisance will exact

complaisance . . .”31 If the judges of today teach a new generation of

30 Professor J Jowell, Judicial Deference and Human Rights: A Question of Competence”, in P Craig and R Rawlings, eds, Laws and Administration in Europe (Oxford University Press, 2003).31 L Hand, The Contribution of an Independent Judiciary to Civilisation, in The Spirit of Liberty. 163 (3rd ed. 1960).

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lawyers, and judges, that complaisance by the judiciary to the views of

the legislature and the executive in policy areas is the best way forward

one of the pillars of our democracy will have been weakened. In

troubled times there is an ever present danger of the seductive but

misconceived judicial mindset that “after all, we are on the same side as

the government”. This phenomenon has manifested itself in obvious

and subtle forms in many democratic countries including our own.

Experienced advocates are familiar with it. It is a slippery slope which

tends to sap the will of judges to face up to a government guilty of abuse

of power. Instead the judges of today must show by example to a new

generation of lawyers, and judges, that it is the democratic and

constitutional duty of judges to stand up where necessary for individuals

against the government. The public is entitled to expect impartial and

effective decision-making by a judiciary fulfilling its democratic duty in

full measure - neither more nor less.32

32 I have been greatly assisted in preparing this lecture by my wife, Susan, Diana Procter, Karen Steyn and Emma Waring, my judicial assistant. The responsibility for it is solely mine.

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